Thursday, January 30, 2014

The Little Sisters' case against Obamacare gets even more absurd (Opinion)

The Supreme Court on Friday gave the Little Sisters of the Poor, a
Catholic order of nuns, temporary relief on their claim that filling out
a government form saying they're against providing contraceptive
services to employees was tantamount to participating in the provision
of contraceptive services to employees, and therefore just as offensive
to their religion.

In a one-paragraph unsigned ruling,
the court said, OK, the Sisters don't have to fill out the specified
government form, but they do have to fill out a form that says exactly
the same thing.

The ruling sends the case back to the Denver federal
appeals court that last rejected the Sisters' position, but doesn't tell
that court how to rule -- it's just an injunction relieving the Sisters
from filling out the form until the appeals court makes a final
decision.

Some legal analysts think this is at least a "partial" victory
for the Little Sisters, who operate a string of nursing homes and
employ about 75 people eligible for health insurance under the federal healthcare law.

Others, such as Rick Hasen of UC Irvine, think not. Comparing what
the sisters objected to doing with what they must now do, he asks, "How is this any different?
... What looks like a victory against having to do a symbolic act may
really be a defeat in having to do the nearly identical symbolic act."

It's tempting to see the progress of the case as proof of Mr. Bumble's observation in "Oliver Twist": "The law is a ass."

To be specific, the sisters objected to filling out the government's Form 700,
which is required of church-affiliated enterprises objecting to
providing contraceptive services to employees at no charge, as the
Affordable Care Act requires.

They're required to submit the form to
their insurance providers so the insurers can fulfill the other part of
the accommodation the government devised to get those services to the
employees despite the employers' objections: The insurers deliver the
services at government expense.

The Little Sisters maintained that filling out the form was just as
bad as providing contraception themselves, because it triggered the
process of someone else providing contraception in their stead.

What
made this claim especially absurd in this case, however, was that the
sisters' insurer, Christian Brothers Services, is exempt from the
healthcare law's contraceptive requirement.

As a result, nothing the
Little Sisters did actually would result in anyone's getting
contraceptives.

Under the high court's order, the Little Sisters still have to inform
the government in writing of their objection to contraception, in
language of their own choice. They don't have to send the certification
directly to their insurer.

But presumably they'll still have to inform
their insurer in some formal way that they've filed the objection.

In many ways, the Little Sisters case is a sideshow to a more
important claims brought by the University of Notre Dame and other
Catholic-affiliated institutions whose employees actually would receive
contraceptive services as a result of Form 700.

Their claims are
probably destined for a fuller review by the Supreme Court, however,
because lower courts have split on the topic.

In a withering opinion,
U.S. District Judge Philip P. Simon of South Bend, Ind., last month
rejected Notre Dame's claim that filling out Form 700 imposed a
religious burden. "Notre Dame wants to eat its cake, and have it still,"
he wrote.

"Notre Dame is free to opt out of providing the coverage
itself, but it can't stop anyone else from providing it. But that is
essentially what Notre Dame is requesting."

In other words, he wrote,
the university is trying to exert "a veto over public programs that do
not prohibit the free exercise of religion."

On the other side of the coin, a Brooklyn federal judge last month granted an injunction
sought by Catholic High Schools in New York on the same issue,
accepting their contention that "self-certification" (that is, filling
out Form 700) is "a compelled act that they believe forbidden."

Of course, these cases pale next to the big issue the Supreme Court
has accepted for argument this spring -- the so-called Hobby Lobby case
in which the owners of private, nonsectarian businesses claim that the
contraceptive mandate violates their personal beliefs.

Plainly, the
challenges to the healthcare law by religious believers uneasy about
operating in the secular world and living by secular rules are not over
yet, and the Supreme Court has just begun to weigh them.